'Information highway' faces legal resistance

January 13, 1994|By Lyle Denniston | Lyle Denniston,Washington Bureau

WASHINGTON -- The Clinton administration's developing plan to supervise construction of an "information superhighway" encountered a potentially serious roadblock yesterday as Supreme Court justices displayed skepticism over Congress' power to control cable television.

The administration's top lawyer in cases before the Supreme Court, Solicitor General Drew S. Days III, faced tough questions at a hearing on the core issue of cable-TV operators' rights under the First Amendment.

The case offers the court its first chance to rule on whether cable TV is to be treated constitutionally like newspapers, and thufree of most government controls, or like over-the-air broadcasters, subject to wide-ranging government regulation under federal licenses or local ordinances.

Justices who together could make up a majority of the court seemed more sympathetic to cable companies' rights than to the administration's claims that Congress must have power to decide key issues of competition and access to electronic communications outlets.

At one point, Justice Antonin Scalia labeled as "blunderbuss" Congress' 1992 command that cable TV must carry, free, th--

entire programming of local broadcast TV stations. He suggested that Congress had gone much further than it needed to assure the survival of local over-the-air stations. If his view gained a majority, it could spell constitutional trouble not only for the 1992 law, but for all government attempts to regulate access to cable channels.

Cable TV is a major sector of the communications industry. The scope of its right to decide on its own what is to be beamed to its huge audience will have "tremendous implications" for the administration's plans to restructure the industry, according to Andrew Schwartzman of the Media Access Project.

Mr. Schwartzman, whose group supports government power to regulate access to cable TV channels, said after yesterday'--

hearing, "I'm uneasy."

He said that the "must carry" case before the court yesterday could affect all government regulation of cable, because the government's options could be "severely limited" if cable wins broad First Amendment rights in that case.

He noted that, under the information superhighway plans being drafted in the government, guaranteed access to cable for certain kinds of information and programming would be a key to information opportunities.

The cable industry's trade group, the National Cable Television Association, seemed elated by the hearing's tenor, noting the justices' skepticism over what the association contends is an unconstitutional law.

Mr. Days conceded that the government could not control cable TV as closely as it does the telephone companies. But he portrayed the cable-TV industry as a growing giant that Congress had to curb to keep it from using its economic powers to dominate the television industry.

Justice Sandra Day O'Connor, who likely will cast a swing vote on the issue, told Mr. Days that it was difficult to argue convincingly that Congress had carefully tailored its cable-TV-access controls.

The cable industry's lawyer, H. Bartow Farr III, countered Mr. Days with a claim that Congress in 1992 had asserted far broader power than it needed to address any economic problem it might have had in mind.

Besides Justices Scalia and O'Connor, justices who asked probing questions, especially of Mr. Days, were Justices Ruth Bader Ginsburg, Anthony M. Kennedy and David H. Souter.

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